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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-southern judicial district

No. 98-515

THE STATE OF NEW HAMPSHIRE

v.

RONALD MCLELLAN

March 7, 2001

Philip T. McLaughlin, attorney general (Christopher H.M. Carter,
assistant attorney general, on the brief and orally), for the State.

Risa Evans, assistant appellate defender, of Concord, by brief and orally, for
the defendant.

BRODERICK, J. The defendant, Ronald McLellan, was convicted in Superior Court (Dalianis,
J.) of one count of aggravated felonious sexual assault and four counts of misdemeanor
sexual assault. See RSA 632-A:2, I(j)(1) (1996) (amended 2000); RSA 632-A:4 (1996).
Because the trial court found that the defendant's aggravated felonious sexual assault
conviction was his third, he was sentenced to life imprisonment without the possibility of
parole, see RSA 632-A:10-a, III (1996) (amended 2000), and also sentenced to four
concurrent twelve-month terms on the misdemeanor convictions. We affirm in part, reverse
in part, vacate the sentence and remand for further proceedings consistent with this
opinion.

The record supports the following facts. During the time period covered by the
indictments, the defendant lived in Nashua with his girlfriend and two of her daughters.
Another daughter, Paula, resided in Massachusetts. On December 7, 1995, Paula reported to
the Nashua Police that the defendant had sexually assaulted one of her sisters.

The day the report was made, Detective John Gallagher interviewed the victim. She told
him about three incidents involving the defendant, but was uncertain as to when they
occurred. She reported to Gallagher that she willingly engaged in the activities she
described. As the victim had recently turned sixteen, when the incidents occurred was
critical to whether her purported consent vitiated the defendant's criminal culpability. See
RSA 632-A:2, I(j).

On December 11, 1995, Gallagher again interviewed the victim while Jane Enright of the
New Hampshire Division for Children, Youth and Families (DCYF) was present. During the
interview, according to a "Law Enforcement Letter" subsequently drafted by
Enright, the victim disclosed "ongoing sexual abuse by [the defendant]."

Approximately three weeks later, Gallagher met with the victim and her mother to
discuss placing the victim with relatives. According to information defense counsel
received from the victim's mother, Enright was present at the meeting.

Gallagher conducted another interview with the victim on January 11, 1996, at which
time she recalled an additional incident involving the defendant which occurred prior to
her sixteenth birthday. She claimed that the defendant was in a position of authority over
her and that some of the incidents were not consensual. She also explained that she
allowed the defendant to engage in sexual acts with her because she did not want the
defendant to do the same thing to her younger sister.

Prior to jury selection, the defendant moved, unsuccessfully, for an order allowing his
counsel to conduct sequestered, individual voirdire of potential jurors. He
also filed a motion to secure the confidential DCYF investigation records of the victim.
After a hearing, the motion was denied because the defendant made an insufficient showing
under State v. Gagne, 136 N.H. 101, 105 (1992).

The defendant was convicted and subsequently sentenced in July 1998. After finding that
he had been convicted of two prior aggravated felonious sexual assaults, the trial court
sentenced him to life without parole pursuant to RSA 632-A:10-a, III.

On appeal, the defendant argues the trial court erred in: (1) refusing to allow his
counsel to conduct sequestered, individual voirdire; (2) refusing to
conduct an incamera review of confidential DCYF records; (3) using the
wrong standard of proof to establish his prior convictions for the purposes of sentence
enhancement; and (4) finding sufficient evidence to prove his identity as the person
convicted of the prior assaults.

I

The defendant first contends that because he faced mandatory life imprisonment without
parole, see RSA 632-A:10-a, III, the trial court should have granted his request
for sequestered, individual voirdire. Arguing that first degree murder
defendants face the same mandatory sentence, see RSA 630:1-a, III (1996), and that
trial courts generally allow sequestered, individual voirdire in such
cases, the defendant asserts that he is entitled to the same procedural safeguards under
the equal protection provisions of the State and Federal Constitutions. See N.H.
CONST. pt. I, art. 2; U.S. CONST. amend. XIV, § 1. We disagree.

We first analyze the defendant's argument under our State Constitution, looking to
federal law for guidance only. SeeState v. Ball, 124 N.H. 226, 231 (1983).
Because the Federal Constitution provides no greater protection in the area of equal
protection, we need not undertake a separate federal analysis. SeeLeClair v.
LeClair, 137 N.H. 213, 221-22 (1993).

The right to have a fair and impartial jury determine guilt or innocence is "a
fundamental precept of our system of justice." State v. VandeBogart, 136 N.H.
107, 110 (1992). However, while the right to an impartial jury enjoys constitutional
protection, "the manner in which voirdire is conducted is wholly
within the sound discretion of the trial judge." State v. Bone, 131 N.H. 408,
412 (1989) (quotation omitted). Traditionally, the trial court, not counsel, conducts jury
voirdire in all cases except capital cases. Seeid. The
exception is premised on the fact that in capital cases the jury determines whether a
sentence of death will be imposed. "A juror who declares that he cannot exercise
judgment upon that question is not indifferent and should not be permitted to serve."
State v. Comery, 78 N.H. 6, 11 (1915).

In the last twenty-five years, trial courts have routinely extended sequestered,
individual voirdire to first degree murder cases where the State does not
seek the death penalty. See 2 R. McNamara, New Hampshire Practice, Criminal
Practice and Procedure § 916, at 390 (1997). The nature of a charge of first degree
murder raises a concern that the jury will assume that a guilty verdict results in a
sentence of death or life imprisonment. Thus, as in capital cases, a jury's ability to
exercise impartiality may be affected by considerations beyond guilt or innocence. These
concerns warrant the use of individual voirdire.

The same concern for jury impartiality simply is not present in this case. The jury had
no knowledge of what sentence the defendant faced; nor did it participate in the
sentencing process. See RSA 632-A:10-a, III. Further, concern over juror fitness
based upon a common assumption that the crime charged will result in death or a life
sentence is also not present here. Therefore, a defendant charged with aggravated
felonious sexual assault is not similarly situated with a defendant charged with capital
or first degree murder. Accordingly, no equal protection problem exists. SeeLeClair,
137 N.H. at 222.

II

The defendant next argues that the trial court erred in denying his pretrial motion for
an incamera review of the victim's DCYF confidential records. Based on his
claim that the DCYF report could explain inconsistencies in the victim's statements
against him, the defendant contends that the trial court misapplied the Gagne
standard. SeeGagne, 136 N.H. at 105. We agree.

"[I]n order to trigger an incamera review of confidential or
privileged records, the defendant must establish a reasonable probability that the records
contain information that is material and relevant to his defense." Id. at 105.
"The threshold showing necessary to trigger an incamera review is not
unduly high. The defendant must meaningfully articulate how the information sought is
relevant and material to his defense." State v. Graham, 142 N.H. 357, 363
(1997).

In State v. Taylor, 139 N.H. 96, 98 (1994), the defendant asserted that he had
reason to believe the victim was interviewed by DCYF. The defendant, however, presented
nothing more than this general assertion as justification for an incamera
review of DCYF files. Seeid. Unlike in Gagne, where we allowed incamera review, the defendant in Taylor failed to offer "specific
arguments concerning relevant evidence that, according to information obtained
independently by counsel, may have been contained in the DCY[F] file." Id. at
98. Affirming the trial court's denial of the defendant's motion for incamera
review, we held that "[a]t a minimum, a defendant must present some specific concern,
based on more than bare conjecture, that, in reasonable probability, will be explained by
information in the DCY[F] file." Id. at 99.

As in Gagne and Taylor, the defendant's argument begins with the general
assertion that the victim was interviewed by DCYF. Unlike the defendant in Taylor,
however, the defendant did not rest on this general assertion. Based upon the "Law
Enforcement Letter" written by Enright and information provided by the victim's
mother, defense counsel argued that a reasonable probability existed that the DCYF records
may contain information concerning: (1) how the victim's perception of the incidents
changed from consensual to non-consensual; (2) why the victim recalled additional
incidents that allegedly occurred prior to her sixteenth birthday after her first meeting
with Detective Gallagher; (3) whether the victim's various interviews with the police
contained inconsistencies; and (4) whether, and to what extent, DCYF counselors prepared
the victim. In his motion for reconsideration, the defendant further articulated these
specific arguments.

Applying Gagne and its progeny, we find that the defendant established a
reasonable probability that the DCYF file contained information that may have been
material and relevant to his defense. SeeGagne, 136 N.H. at 105. The
defendant presented at least four specific arguments "concerning relevant evidence,
that, according to information obtained independently by counsel, may have been contained
in the DCY[F] file." Taylor, 139 N.H. at 98; seealsoGagne,
136 N.H. at 106. Thus, we remand for the trial court to conduct an incamera
review of the victim's DCYF file. If on remand the trial court determines that the records
contain evidence that would have been "essential and reasonably necessary to the
defense at trial . . . the court should order a new trial unless it finds that the error
of not admitting the evidence in the first trial was harmless beyond a reasonable
doubt." Graham, 142 N.H. at 364.

III

The defendant next argues that the trial court applied the wrong standard of proof in
determining whether he had two prior convictions for sentencing purposes. In accordance
with RSA 632-A:10-a, III, the prior convictions triggered a sentence enhancement to life
imprisonment without parole. The defendant also argues that, regardless of what standard
of proof is utilized, the evidence was insufficient to prove his identity as the person
previously convicted.

Generally, the facts supporting a sentence need not be proved beyond a reasonable
doubt. See, e.g., State v. Gosselin, 117 N.H. 115, 122 (1977). In Almendarez-Torres
v. United States, 523 U.S. 224, 228-48 (1998), the United States Supreme Court
essentially held that a sentence enhancing statute based, in part, on prior convictions,
is merely a penalty provision and does not create a separate crime or constitute a
separate element of a crime. Therefore, a prior conviction need not be alleged in the
indictment, seeid. at 227, and generally need not be proved beyond a
reasonable doubt as part of the crime charged. The Court, however, expressed no opinion
"on whether some heightened standard of proof might apply to sentencing
determinations that bear significantly on the severity of sentence." Id. at
248.

The defendant argues that due process demands "something more than a proof beyond
a probability of the prior convictions, even if they are considered to be enhancement
factors rather then elements of the offense." He contends that proof beyond a
reasonable doubt is the appropriate standard in this case. We agree.

The first step in a due process analysis is to "determine whether the challenged
procedures concern a legally protected interest." Petition of Bagley, 128 N.H.
275, 282-83 (1986). Here, the defendant faces a sentence of life without parole. Our
constitution expressly recognizes the right to due process before imprisonment as a
legally protected interest. See N.H. CONST., pt. I, art. 15. Therefore, we must
consider whether proof of prior convictions beyond a reasonable doubt is required to
safeguard the defendant's due process rights under the sentencing provisions of RSA
632-A:10-a, III. SeeBagley, 128 N.H. at 283. This consideration entails
weighing the following factors:

(1) the private interest affected by the official action; (2) the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and (3) the government's interest,
including the function involved and the fiscal and administrative burden that the
additional or substitute procedural requirements would entail.

Id. at 285.

The private interest affected here is the deprivation of liberty. With the exception of
the death penalty, life imprisonment without parole is the most severe penalty that may be
imposed in this State. Accordingly, the standard of proof applied to prior convictions for
sentencing under RSA 632-A:10-a, III may dramatically affect the defendant's liberty.

Turning to the second prong, a possibility exists that a defendant may be erroneously
sentenced to life imprisonment without parole under the current standard of proof pursuant
to RSA 632-A:10-a, III. The gravity of the potential sentence renders any such possibility
a significant risk that must be minimized by a heightened burden of proof.

We last consider the government's interest. We recognize its desire to avoid expanded
hearings for sentencing and to minimize "fiscal and administrative burdens on the
court, the prosecution, and law enforcement officials." In re Eduardo L., 136
N.H. 678, 688 (1993). The government also has an interest in protecting its citizens from
repeat offenders. A heightened standard of proof under RSA 632-A:10-a, III, however, would
not dramatically interfere with these legitimate concerns. Indeed, a variety of
information, i.e., fingerprint cards, booking photographs, FBI reports, social
security number, and other identifying information is readily available to prosecutors.
This information can be presented to the trial court efficiently and effectively to
ensure, beyond a reasonable doubt, that the defendant was convicted of two prior
aggravated sexual assaults and should be permanently removed from society.

The analysis of these three factors supports our conclusion that the Due Process Clause
of the New Hampshire Constitution requires proof beyond a reasonable doubt of prior
convictions used to enhance a defendant's sentence to life without parole under the
provisions of RSA 632-A:10-a, III.

Accordingly, we vacate the defendant's sentences on all counts, since the sentence of
life imprisonment without parole may have affected the trial court's decisions in imposing
the other sentences. If after incamera review of the DCYF records the trial
court does not order a new trial, then a new sentencing hearing shall be held consistent
with this opinion. Therefore, we do not reach the defendant's sufficiency of the evidence
claim.

Although the defendant raised other issues in his notice of appeal, the issues were not
briefed and we deem them waived. State v. Mountjoy, 142 N.H. 648, 652 (1998).